Police and Justice Bill

moved Amendment No. 14: Page 22, line 13, at end insert- ““28B TREATMENT OF ORGANISATIONS PERFORMING PARENTING CONTRACT AND PARENTING ORDER FUNCTIONS AS PUBLIC AUTHORITIES (1) Any person with whom arrangements are made under or by virtue of section 28A for the performance of the functions under section 25A or 26A shall, in the discharge of those functions, be treated as a public authority for the purposes of the Human Rights Act 1998. (2) For the avoidance of doubt it is hereby declared that nothing in this section affects the meaning of ““public authority”” in section 6 of the Human Rights Act 1998 or the determination of whether functions, other than those referred to in subsection (1) above, are functions of a public nature for the purposes of section 6.”””” The noble Viscount said: My Lords, in moving Amendment No. 14, I shall speak also to Amendment No. 63. We did not move these amendments on Report, as our intention was to return to them at this stage of the Bill. They affect the relationship between the application of human rights considerations and parenting contracts. The first amendment would ensure that bodies entering into parenting contracts and applying for parenting orders would be required to respect the human rights of those concerned. Local authorities also have the power to subcontract their anti-social behaviour powers. The second amendment in the group would require bodies to which such powers had been subcontracted to respect human rights standards when exercising these powers. These amendments build on old Amendments Nos. 137A and 137B debated during the third day of Committee. In both cases, we have added a new subsection (2). Perhaps I may recall the position. The Human Rights Act 1998 requires public authorities to act in a way that is compatible with the human rights that the Act protects. When local authorities exercise their powers with respect to parenting contracts and orders, they are required to comply with these basic human rights standards, as they are clearly ““public authorities”” for the purposes of the Human Rights Act. Liberty, among others, believes that if other bodies are to be given these powers, they, too, should be required to comply with the human rights of those affected by parenting contracts and orders. However, your Lordships will be aware that the courts' interpretation of Section 6 of the 1998 Act has made it unclear whether private bodies will indeed be covered—thus the need for these amendments to the Bill to spell out that any body exercising the powers in Clause 24 should be treated as a public authority for human rights purposes. The Joint Committee on Human Rights set out the case well, and I hope that your Lordships will bear with me if I quote its comments. In paragraph 1.29 on page 13 of its report, it states: "““The provision in the Bill for contracting out local authority functions of entering into parenting contracts and applying for parenting orders, however, does give some cause for concern on human rights grounds””." It goes on to say: "““The continuing uncertainty about the meaning of ‘public authority’ in s. 6(3)(b) of the Human Rights Act 1998, caused by the Leonard Cheshire decision, means that it cannot be predicted whether the person(s) specified by the Secretary of State as a person to whom the local authority’s functions can be contracted out will be treated by the courts as a public authority for the purposes of the HRA””." It continues: "““Although the court which must decide whether to make a parenting order must itself act compatibly with Article 8 when deciding whether or not to make the order, it is an additional safeguard for Article 8 rights that the body entitled to apply for such an order is itself a public authority with an obligation to act compatibly with Convention rights when deciding whether or not to apply for such an order””." It finishes conclusively by saying: "““In our view it would be desirable if the Bill were to provide explicitly that the person to whom the functions are contracted out is to be treated as a public authority for the purposes of the HRA 1998 in the discharge of those functions””." In Committee, the noble Lord, Lord Bassam, did not disagree with the principle underlying these amendments; he only expressed reservations about whether inclusion of the proposed clause in the Bill was the most appropriate means of clarifying this position. He referred to the Johnson v Havering case and a possible change in interpretation by the courts. Liberty, in my view convincingly, questions whether the possibility of a future change in the approach by the judiciary should prevent Parliament from clarifying its intention in the mean time. There is no constitutional reason why Parliament should not clarify the law on a case-by-case basis, pending a judicial decision. Indeed, while it is hoped that the court may change its interpretation, there is no guarantee of that, and our inaction on this issue could lead to a failure to provide protection for the human rights of people affected by the actions of private bodies to which public functions are contracted out. In response to the secondary concern raised by the noble Lord, Lord Bassam, that these provisions may cast doubt on previous legislation in which the position is intended to be the same but has not been explicitly stated, we have added the new subsection (2) in each of the two amendments to clarify that that is not the effect. I hope that that will enable clarification of the position in this legislation, while avoiding wider, undesired consequences. I hope that, with these drafting improvements, the Minister will seriously consider these amendments, especially as he does not disagree in principle. I beg to move.